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IT-09-92-T
D83285 - D83279
23 October 2014
UNITED
.,
NATIONS
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations of
International Humanitarian Law
Committed in the Territory of the
Former Yugoslavia since 1991
Case No.
IT-09-92-T
Date:
23 October 2014
Original:
English
IN TRIAL CHAMBER I
Before:
Judge Alphons Orie, Presiding
Judge Bakone Justice Moloto
Judge Christoph Fliigge
Registrar:
Mr John Hocking
Decision of:
23 October 2014
PROSECUTOR
v.
RATKO MLADIC
PUBLIC
DECISION ON PROSECUTION MOTION TO RE-OPEN ITS
CASE-IN-CHIEF
Office of the Prosecutor
Mr Peter McCloskey
Ms Camille Bibles
Counsel for Ratko Mladic
Mr Branko Lukic
Mr Miodrag Stojanovic
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DV
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I.
PROCEDURAL HISTORY AND SUBMISSIONS OF THE
PARTIES
1.
On 26 August 2014, the Prosecution requested a re-opening of its case-in-chief ("Motion").!
The Prosecution seeks leave to re-open its case in order to present evidence in relation to the
recently discovered Tomasica mass grave. 2 Specifically, the Prosecution intends to present fue
testimony of six expert witnesses (including the tendering of 17 documents) and seven fact
witnesses (five of whom through Rule 92 bis of fue Tribunal's Rules of Procedure and Evidence
("Rules")), as well as documentary evidence in the form of 43 documents ("Material,,).3 The
Prosecution requests nine hours for the presentation of the Materia1. 4 Lastly, the Prosecution seeks
leave to exceed the word limit for motions. 5
2.
The Prosecution submits fuat the Material could not have been identified and presented
during the Prosecution's case. 6 The Prosecution submits that it learned of fue Tomasica grave in
September 2013 and that forensic analysis began right away, continuing until April 2014.7 DNA
identifications were provided to fue Prosecution in May and June 2014 8 Witness statements in
relation to the new evidence were taken until July 2014. 9 The Prosecution submits fuat it was more
appropriate to wait until all investigations and expert analyses had been completed before filing the
Motion as opposed to seeking to introduce fue Material as it became available.!O Furfuermore, the
Prosecution submits that the Material is highly probative and directly relevant to the charges in the
Indictment, namely fue joint criminal enterprise to permanently remove non-Serbs from· Bosnian
Serb-claimed territory in Bosnia-Herzegovina in 1992 through the commission of crimesY
According to the Prosecution, fue Material reveals the significant role the VRS played in the
murder, burial, and re-burial of non-Serbs in Prijedor municipality.!2 The Prosecution submits that
the number of bodies exhumed from the mass grave, as well as the size and organised nature of fue
burials, bear on the planned, systematic, and large-scale nature of killings in the municipality of
2
4
5
6
7
9
10
11
12
Prosecution Motion to Re-Open its Case-in-Chief, 26 Augnst 2014.
Motion, paras 1,4, 15,38.
Motion, paras 4, 15-16, Annexes A-B. The Chamber understands that the Prosecution intends to tender these 60
documents in court through the witnesses and will seek to have them added to its Rule 65 ter exhibit list at that
stage.
Motion, paras 5, 36.
Motion, para. 6.
Motion, para. 2.
Motion, paras 3, 10, 13, 17.
Motion, para. 17.
Motion, para. 18.
Motion, para. 19.
Motion, para. 22.
Ibid.
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Prijedor. 13 Lastly, the Prosecution submits that the Defence is not unduly prejudiced by the
proposed re-opening as the Defence has been on notice of the Prosecution's intention to tender
evidence related to the newly discovered mass grave as of November 2013 and the Motion was
filed early in the Defence case.'4
3.
The Defence responded on 9 September 2014 ("Response")Y The Defence submits that the
Prosecution did not present the Material as early as possible.'6 Further, the Defence states that reopening the Prosecution's case would cause a significant delay in the trialY The Defence
announces its intention to request an adjournment of at least two months to prepare for the
presentation of the Material.'8 The Defence further submits that a re-opening would cause it
prejudice as the Defence case has already started.'9 The Defence acknowledges the general
importance and probative value of the Material but considers it to be merely additional to other
Prosecution evidence already presented, making it not crucial to the Prosecution's case against the
Accused. 2o Lastly, the Defence submits that the Chamber should consider the Karadii{; Trial
Chamber's denial of a similar motion to re-open the Prosecution's case when deciding on the
Motion?'
On 16 September 2014, the Prosecution requested leave to reply to the Response, attaching
4.
its reply ("Reply,,).22 In its Reply, the Prosecution argues that it filed the Motion 'as early as
possible', namely only a few days after the last expert report was received. 23 The Prosecution
further states that the Defence's submissions regarding it significant delay in the trial as a result of
I3
Ibid
14
Motion, para. 33.
15
Response to Prosecution Motion to Re-Open its Case-in-Chief, 9 September 2014.
16
Response, paras 2, 18.
Response, paras 4-8, 17. The Chamber notes some inaccuracies in the Defence's submissions
17
in this respect: First,
the Defence (as well as the Prosecution in its Reply, para. 5) speaks of 'rejoinder evidence' when addressing
evidence which would challenge the Material (Response, paras 5, 7), whereas such evidence would be part of the
Defence case considering that the Material would be evidence of the Prosecution's case-in-chief and not rebuttal
evidence. Second, the Defen"e suggests that it had previously requested six months for the preparation of its case,
starting from the date the Prosecution rested its case (Response, para. 6), whereas the Defence submissiol15 on this
point at T. 20030 were abundantly clear that the six-month request was to be counted as of the conclusion of the
testimony of the last Prosecution witness, which occurred ahnost two-and-a-half months earlier than the
Prosecution's notification that it rests its case.
18
Response, paras 7, 17.
19
Response, paras 10, 12, 17.
Response, paras 13, 15, 17.
Response, para. 18.
Prosecution Request for Leave to Reply to Defence Response to Prosecution Motion to Re-Open its Case-in-Chief,
16 September 2014.
Reply, paras 3-4.
20
21
22
23
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the proposed re-opening are speculative and unsubstantiated. 24 Lastly, the Prosecution submits that
the Defence minimises and misstates the relevance and probative value ofthe Material. 25
II.
5.
APPLICABLE LAW
Rule 85 (A) of the Rules states:
Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial
Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
i. evidence for the prosecution;
ii. evidence for the defence;
iii. prosecution evidence in rebuttal;
iv. defence evidence in rejoinder;
v. evidence ordered by the Trial Chamber pursuant to Rule 98; and
vi. any relevant infonnation that may assist the Trial Chamber in determining an appropriate sentence ifthe
accused is found guilty on one or more of the charges in the indictment.
6.
In considering an application for reopening a case, the Chamber will first determine whether
the evidence could, with reasonable diligence, have been identified and presented during the casein-chief of the party making the application. 26 If not, the Chamber has the discretion to admit this
'fresh evidence', and will consider whether its probative value is substantially outweighed by the
need to ensure a fair trial. 27 In making this determination, chambers have considered the stage of the
trial at which the evidence is sought to be adduced and any potential delay that would be caused to
the trial. 28
7.
Rule 54 ofthe Rules provides that at the request of either party or proprio motu, a Judge or a
Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may
be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
24
25
26
Reply, paras 5-6.
Reply, paras 8-9.
Prosecutor v. Radovan Karadiic, Case No. IT-95-5/18-T, Decision on Prosecution Motion to Re-Open its Case and
Prosecution Motion for Protective Measures for Witness KDZ614, 20 March 2014, para. 11; Prosecutor v.
Momcilo Peri'ic. Case No. IT-04-81-T, Decision on Motion to Reopen the Prosecution Case and Tender
Docmnents Through the Bar Table, 4 November 2010, para. 5; Prosecutor v. Ante Gotovina et al., Case No. IT-0690-AR73.6, Decision on Ivan Cermak and Mladen Markac Interlocutory Appeals Against Trial Chamber's
Decision to Reopen the Prosecution Case, I July 2010, paras 23-24; Prosecutor v. Vujadin Popovic et al., Case No.
IT-05-88-T, Decision on Motion to Reopen the Prosecution Case, 9 May 2008, paras 23-25; Prosecutor v. Zejnil
Delalic et aI., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 283, with reference to Rule 89 (D) of the
Rules.
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III. DISCUSSION
8.
At the outset, the Chamber is satisfied that the matter of re-opening the Prosecution's case
requires detailed briefings by the parties. As such, the Chamber will grant the Prosecution's
requests to exceed the word limit in the Motion and to reply to the Response.
9.
The Chamber is satisfied that while the Tomasica mass grave was discovered in September
2013, at a time when the Prosecution's case-in-chief was ongoing, the necessary analysis of the
grave, as well as the compiling of witness statements and expert reports continued up until August
2014. As such, the Prosecution was unable to present the Material as part of its case-in-chief. The
Chamber also considers that the Material is so connected to each other that it would have been
inefficient to tender individual parts of the Material as they became available. Under these
circumstances, the Chamber finds that the Material is 'fresh evidence'.
10.
While the Defence submits that the Material is not crucial to the Prosecution's case against
the Accused, it acknowledges its general importance and probative value. The Chamber
understands this to mean that the parties do not dispute the relevance and probative value of the
Material, but merely disagree about the degree of the Material's importance. In any event, the
Chamber considers the Material to be relevant to the charges in the municipalities' component of
the case and of probative value. Specifically, the Chamber notes the Prosecution's submissions that
the Material clarifies the organised and large-scale nature of killings in Prijedor, and the VRS's role
therein. The Chamber has considered the Defence submissions about a delay in the trial and the
stage of the proceedings. The Chamber has heard around 60 Defence witnesses, out of a total of
over 300. Most of these witnesses testified in relation to the Sarajevo component of the case and no
specific Defence evidence has been presented in relation to Prijedor. Considering this, the Chamber
still considers that the Motion was filed early during the Defence case. The Defence will have
ample opportunity to present any evidence in response to the Material as part of its case. 29 As for
the Defence's submissions about a delay in the trial to be caused by the re-opening, the Chamber
acknowledges that the re-opening would prolong the trial. However, considering the Material, the
Chamber is satisfied that the suggested re-opening at this stage of the proceedings would not unduly
prolong the trial. Therefore, the Chamber finds that the probative value of the Material is not
outweighed by the need to ensure a fair trial.
27
28
29
Ibid
Ibid
This would still be the case if the re-opening were to be scheduled for some time in the first half of 20 15.
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11.
In relation to the Defence's reference to the ruling of the Karadiic Trial Chamber, which
denied a Prosecution motion to re-open its case to present evidence on the Tomasica mass grave,
the Chamber clarifies that it has reviewed the decision in question, as well as other decisions on
motions for re-opening, in its continuous effort to acquaint itself with the interpretation of the law
by other chambers. Circumstances which chambers have to weigh when applying the law are
usually different, each case being unique. Having analysed the referenced decision of the Karadiic
Trial Chamber, the Chamber found no exception to this general rule. The disposition of that
decision was therefore of no guidance to the Chamber in deciding the Motion.
IV. DISPOSITION
12.
For the foregoing reasons, pursuant to Rules 54, 73 bis, 85, and 126 bis, the Chamber
hereby
GRANTS the Prosecution leave to file a reply to the Response;
GRANTS the Prosecution's request to exceed the word limit in the Motion;
GRANTS the Motion;
DECIDES to hear the presentation of the Material en bloc at a time to be determined at a later
stage;
INSTRUCTS the Prosecution to file its Rule 92 fer motions without delay;
INSTRUCTS the Prosecution to file its Rule 92 bis motions within two weeks of the filing of this
decision;
INFORMS the parties that it will issue a decision on the exact timing of the re-opening, including
how much time will be available to the Prosecution, once any Rule 92 bis and Rule 94 bis
applications have been decided upon; and
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REMINDS the Defence that its Rule 94 his notices are due on the sixtieth day after the filing of
this decision.
Done in English and in French, the English version being authoritative.
(
Dated this Twenty-third day of October 2014
At The Hague
The Netherlands
[Seal of the Tribunal]
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